The penal surveillant assemblage: attainder and tickets of leave in nineteenth-century colonial Australia

Our origin story of surveillance and Australian colonial penality has two main threads that are connected to early modern British and Irish criminal justice philosophy. The first involves the concepts of attainder and civil death under medieval English criminal law (Dayan, 2011). Civil death stemmed from the law of attainder, which involved the state’s power to stigmatize a felon as a “consequence of the judgment which condemned the criminal for a capital offence,” and resulted in the “forfeiture etc. of lands, goods and personal rights, and corruption of blood” (Bills of Attainder, 1867, p. 74, emphasis in original). Attainder required a certain degree of surveillance in Britain and Ireland to ensure those sentenced to transportation for a fixed or indeterminant period and who returned prematurely received the stipulated penalty of execution.
However, the convict “‘taint’ or ‘stain’” (Brown, 2002, p. 322) extended to various forms of surveillance and law in Australia’s open prison, to reinforce the reality that transportation remained a formal punishment implemented under the authority of the British Crown. These interconnected systems also represent part of an important shift in Western penal and surveillance history that contributed to an individualized, knowledge based system of convict reform.
Our specific concern is to document several modes of imperial oversight
that applied to emerging forms of state formation in early colonial Australia. Our analysis is based on the detailed examination of select
legal and penal histories from the seventeenth century onwards, including
archival research on transportation from England to both North
America and Australia, biographies of noted legal and social reformers
(Morris, 2002; White, 1976), and contemporary scholarship linking principles
of attainder to a range of “secondary punishments” (Shaw, 1953,
p. 16; see also Edgely, 2010), collateral criminal penalties (Colgate Love,
Roberts, & Klingele, 2016), and other forms of shadow carceral surveillance
(Beckett & Murakawa, 2012; Chin, 2012; Palmer & Warren, 2014;
Warren & Palmer, 2018). First, we outline the relationship between sociolegal
conceptions of space and time, and Foucauldian theories of penal
transition and governance in the seventeenth and eighteenth centuries.
Second, we explain the relationship between attainder and civil death
in early modern English law. Third, we identify key problems stemming
from the application of the doctrine of attainder, and its implications on
surveillance, citizenship, property rights, mobility, and the ability to testify
in colonial Australian criminal trials. Fourth, we describe the ticket
of leave system as a localized element of this broader transnational legal
and surveillant assemblage that focused on rewarding convict discipline
through a form of conditional freedom, which was largely unrecognized
in Britain and Ireland. We briefly conclude by reinforcing the importance
of this and related origin stories examining the intersecting elements
of early modern transnational penality, surveillance, and crime.